Owor, M. (2012). Jopadhola clan courts in Uganda. Journal of ......10 In a forthcoming article, the author discusses the question of whether clan court pro ceedings are impartial as

Owor, M. (2012). Creating an independent traditional court: A study ofJopadhola clan courts in Uganda. Journal of African Law, 56(2), 215-242. https://doi.org/10.1017/S0021855312000095

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Creating an Independent Traditional Court:A Study of Jopadhola Clan Courts in Uganda

Maureen Owor*

Abstract

This article examines the contribution of clans (kinship institutions) to the adminis-

tration of justice within the context of standards set out in the African regional

human rights instruments. Field work on the Jopadhola of Eastern Uganda is

drawn upon, to explore how clans reproduce their notion of an independent

court using an abridged legal doctrine of separation of powers, and partially

mimicking lower level government and judicial features. The field work also

shows how clans accommodate interests of women and youth. Even so, clans retain

a largely customary approach to the appointment, qualifications and tenure of court

officials. The main findings lead to the conclusion that, by applying an “African”

notion of human rights, clans have created traditional constructs of an independent

court: one that is culturally appropriate for their indigenous communities.

INTRODUCTION

Human rights standards call for independent courts. Criminal cases should beadjudicated by independent courts to ensure the prime institutional require-ment for a fair trial under article 14(1) of the International Covenant on Civiland Political Rights (ICCPR).1 Independence is also an institutional require-ment for a fair trial under article 7 of the African Charter on Human andPeoples’ Rights 1981 (the African Charter).2 But what is an independentcourt? As Nowak concisely puts it, the independence of a court means separ-ation of the organs of government, specifically the judge, from the control ofthe executive and, to a lesser degree, the legislature. Independence also relatesto the appointment and impeachment of judicial officers.3 Therefore, the

* PhD (Bristol, UK); associate lecturer, School of Law, University of Bristol. Email: [email protected] and [email protected]. The author is grateful for the insightful com-ments from Prof M Evans and Prof R Young on earlier drafts. She is equally indebtedto the anonymous reviewer for their constructive comments.

1 GA res 2200A (XXI), 21 UN GAOR supp (no 16) at 52: UN doc A/6316 (1966).2 OAU doc CAB/LEG/67/3/Rev. 5 (1981), came into force on 21 October 1986.3 M Nowak United Nations Covenant on Civil and Political Rights – CCPR Commentary (2nd edi-

tion, 2005, NP Engel Publisher) at 319, para 25 and 321, para 28. These principles are alsoenshrined in the Basic Principles on the Independence of the Judiciary 1985, adopted bythe 7th United Nations Congress on the Prevention of Crime and Treatment ofOffenders, Milan 1985 and endorsed by GA res 40/32; 40/146. G Tumwine-Mukubwa“Ruled from the grave: Challenging antiquated constitutional doctrines and values in

Journal of African Law, 56, 2 (2012), 215–242 © School of Oriental and African Studies, 2012.doi:10.1017/S0021855312000095 First published online 29 August 2012

doctrine of separation of powers is at the nucleus of the independence of astate’s judiciary.

Whilst independence is usually thought of in terms of courts of law, it alsoapplies to traditional courts under the African regional human rights frame-work. To this end, section S(1) of the Principles and Guidelines on the Right toa Fair Trial and Legal Assistance in Africa 2003 (the Guidelines)4 defines a tra-ditional court as: “a body which in a particular locality, is recognised as havingthe power to resolve disputes in accordance with local customs, cultural orethnic values, religious norms or tradition.”

In short, traditional courts are non-state, indigenous “judicial” institutionsthat decide cases according to customary norms. Such norms include an“African” notion of human rights where, as Gyekye contends, individualrights are abridged by social responsibilities in so far as abridgement isnecessary to maintain the integrity and stability of the group.5 Individualrights are therefore interconnected with a duty to community. Despite thisnormative difference, traditional courts are enjoined under section Q(a) ofthe Guidelines to comply with international human rights standards onthe right to a fair trial. An individual’s right to a fair trial by an independentand impartial court is sacrosanct under article 10 of the UniversalDeclaration of Human Rights 19486 as expounded in article 14(1) of theICCPR.

The independence of a traditional court is provided for in section Q(c) asfollows:

“The independence of traditional courts shall be guaranteed by the laws of the

country and respected by the government, its agencies and authorities:

1. they shall be independent from the executive branch

2. there shall not be any inappropriate or unwarranted interference with

proceedings before traditional courts.”

Under this section, states must pass legislation to guarantee the independenceof traditional courts. Uganda has not yet enacted laws in this regard, therebyfailing to comply with the peremptory requirements of section Q(c). This is

contdAfrica” in J Oloka-Onyango (ed) Constitutionalism In Africa: Creating Opportunities, FacingChallenges (2004, Fountain Publishers) 287 at 295–99 and G Kanyeihamba Constitutionaland Political History of Uganda: From 1894 to Present (2nd edition, 2010, LawAfricaPublishing (U) Ltd) at 269–73 explain that separation of powers is intertwined with therule of law. This article focuses only on the former.

4 DOC/OS/(XXX)247 of 2003, reproduced in R Murray and M Evans (eds) Documents of theAfrican Commission on Human and Peoples’ Rights (vol II 1999–2007, 2009, HartPublishing) 381. The Guidelines adopted in 2003 by the African Commission onHuman and Peoples’ Rights (African Commission) expound art 7 of the African Charter.

5 K Gyekye Tradition and Modernity: Philosophical Reflections on the African Experience (1997,Oxford University Press) at 65.

6 GA res 217A (III): UN doc A/810 at 71 (1948).

JOURNAL OF AFRICAN LAW VOL , NO

unexpected, given the fact that Uganda, as a signatory to the African Charter,7

is obliged to enforce the rights contained in the charter and the associatedGuidelines. Under Uganda’s Constitution of 1995 (the Constitution), the presi-dent may make conventions with any international body and Parliament mayenact laws governing their ratification.8 Although the Ratification of TreatiesAct establishes a dualist approach, where a convention must be incorporatedin national legislation, Uganda has not integrated the African Charter into dom-estic law.9 Accordingly, traditional courts operate in the absence of a nationalprescriptive framework. Fundamentally, section Q(c)(1) stipulates that tra-ditional courts shall be independent from the executive branch. How thismay be achieved by kinship systems is not specified.

This article focuses on examining whether traditional courts are in fact“independent”, as understood by the human rights approaches. It does soby shedding light on how clans create an “independent” court, and consider-ing whether clan courts meet the emergent international standards of inde-pendence within the context of section Q(c)1.10 Such analysis is importantbecause, while the institutional set up of “statutory traditional courts” has gen-erated some research, that of indigenous traditional courts has been largelyoverlooked.11 For though the Guidelines are meant to be an “interpretationaland normative aid”, as Baderin rightly argues, it is ambitious to expect tra-ditional courts to apply international standards, given their practices.12 Forinstance, kinship systems conflate executive and judicial functions, in contradis-tinction to the doctrine of separation of powers. Furthermore, a fair trial trans-lates into a notion of procedural fairness (or even-handedness) where everyoneis heard and is required to protect kinshipmembers. This is quite unlike formalcourt procedures that safeguard the interests of individual litigants.

On the basis of qualitative data gathered from two Jopadhola clan (tra-ditional) courts of the Jo-Gem and Morwa Guma Malasang (Morwa Guma)

7 Uganda ratified the African Charter on 10 May 1986, deposited the instrument on 27 May1986 and signed it on 18 August 1986. The document is available at: <http://www.achpr.org/instruments/achpr/ratification/> (last accessed 3 July 2012).

8 Art 123(1) and (2) of the Constitution chap 1 (2000 edition, Laws of Uganda), as amendedby the Constitution (Amendment) (no 2) Act 2005.

9 Under sec 2(a) of the Ratification of Treaties Act, chap 204 (2000), all conventions shall beratified by the cabinet (or in specific instances by a resolution of Parliament (sec 2(b)),and then laid before parliament (sec 4).

10 In a forthcoming article, the author discusses the question of whether clan court pro-ceedings are impartial as prescribed in sec Q(c)(2) of the Guidelines.

11 The phrase “statutory traditional courts” is borrowed from Wanda, to distinguish tra-ditional courts created by statute from indigenous ones that operate in local commu-nities but without legal recognition: P Wanda “The role of traditional courts inMalawi” in P Takirambudde (ed) The Individual Under African Law (proceedings of thefirst All Africa Law Conference, 11–16 October 1981) (1982, University of Swaziland) 78at 79.

12 M Baderin “Recent developments in the African regional human rights system” (2005) 5Human Rights Law Review 117 at 126.

JOPADHOLA CLAN COURTS IN UGANDA

clans, this article presents the empirical findings of a research study thatexamined the adaptation of legal doctrine and structures by local commu-nities. It suggests that clans have partially reproduced, in various ways intheir normative structure, features of the government system with whichthey are familiar. First, the clans incorporate the local government systemby adopting an abridged doctrine of separation of powers. Secondly, theclans apply women and youth quotas used in local council courts to ensurefair representation. The quota provision enshrined in the Constitution isdesigned to address the lack of participation by women and youth in lowerlevel and national decision making institutions. Article 180(2)(b) of theConstitution reserves one third of all local council membership for women.Youth membership is alluded to in article 180(2)(c), as is affirmative actionfor marginalized groups under article 32.

Concurrently, clans apply a traditional approach underpinned by the dutyof kin to participate in social control. Appointments are centred on meritoc-racy and adult suffrage; clan members participate in the removal of officials;and clan officials manage spiritual activities. Importantly, the eligibility cri-teria exclude legal qualifications.

Some key definitions will be useful for the purposes of this article. Clancourts fall within the definition of traditional courts in section S (1) of theGuidelines. The term refers to kinship institutions that resolve cases of a crim-inal nature within a social group from the same extended family lineage clan.This is part of what anthropologists call kinship organization.13 Lower level gov-ernment comprises the local councils and their associated courts with quasi-judicial status. The judiciary comprises the superior courts: Supreme Court;Court of Appeal and Constitutional Court; and the High Court; as well aslower courts - chief magistrate, grade I and grade II magistrates courts.14

The article is set out in five sections. First is the methodology to the studyand a background to the Jopadhola through the lens of the Jo-Gem andMorwa Guma clans. Next, the article outlines the status of clan courts withinUganda’s legal framework, and then briefly highlights the key findings fromearlier research. The main discussion follows, analysing the “reproduction”process by which Jopadhola clans have assimilated national features to createtheir notion of an independent court. The article concludes with a brief evalu-ation of the wider implications of this assimilation process on the implemen-tation of the Guidelines in the local context.

13 P Kirchloff “Kinship organization: A study of terminology” (1932) 5 Africa: Journal of theInternational African Institute 184 at 184–91.

14 Local councils fall under the Local Governments Act chap 243 (2000) (LGA). Local councilcourts are established by the Local Council Courts Act (LCCA) 13/2006. Superior courtsare delineated in art 129(2) of the Constitution and the Judicature Act chap 13 (2000).Magistrates courts are established by the Magistrates Courts Act chap 16 (MCA) (2000)as amended by the Magistrates Courts Act (Amendment) Act 7 of 2007.


JO-GEM AND MORWA GUMA CLANS: METHODOLOGYAND SETTING

The data in this article derive from interviews and a workshop for clan courtofficials of the Jo-Gem and Morwa Guma clans of the Jopadhola in July andAugust 2006, and further interviews in August 2008. Respondents includedthe kwar adhola [Jopadhola supreme leader] of Tieng Adhola (the Padhola cul-tural union). The study15 covered West Budama County (north constituency)in Tororo district, comprising Kirewa, Kisoko, Nagongera, Paya and Petta sub-counties. In all, 25 participants attended the workshop on 15 August 2006:seven women and 18 men. There were seven groups representing seven clancourts: the gombolola [sub-county], miluka [parish] and kisoko [village] courtsof the Jo-Gem clan, and the p’oriwa [supreme unifying organ], saza [county],gombolola and miluka (combined with kisoko) courts of the Morwa Guma clan.The workshop was preceded by an interview on 12 August 2006 with Mr AO,the highest Jo-Gem clan leader, and Mr YO, a Morwa Guma saza head.Mr RO, (acting) Morwa Guma saza head, was interviewed on 18 August 2008.

The study used a simulation of a reconstructed trial involving two offendersaccused of incest for being related as members of the same clan. The simu-lation was done by participants who were real clan court officials acting asdefendants, witnesses, court officials and the audience. The participantsselected incest as one of the most common offences tried by clan courts.The use of a trial simulation was to illuminate the hitherto undocumentedcomposition of clan courts and the restorative processes that lead to a particu-lar verdict and sentence.

These two clans were chosen because they are good archetypes of how indi-genous societies create an “independent” court to suit local circumstances.The Jo-Gem, a small clan formed in 1996, is an interesting example of microlevel practice. They live mainly in Kisoko sub-county and number just 396:44 men, 49 women, 43 women by marriage and 260 youth.16 “Youth” refersexclusively to unmarried individuals between 18 and 25 years of age. By con-trast, the Morwa Guma is one of the larger clans. Although its total numbersare unknown, they are estimated to be several thousand, scattered in mainlyKisoko, Paya and Nagongera sub-counties. The practice of the Morwa Gumaas an older, better established clan, illustrates the reproduction of “law”withina traditional context at a more advanced level. Inquiring into these differentclan experiences will unearth similarities and divergence in each clan’s notionof an independent court. Such features would be missed if one were to aggre-gate their practices in a single approach, as was the case in other studies dis-cussed in this article.

15 The study was prepared for the author’s doctoral thesis: M Owor “Making internationalsentencing relevant in the domestic context: Lessons from Uganda” (unpublished PhDthesis, University of Bristol, UK, 2009).

16 Jo-Gem clan register 2006.


Before examining the data, one caveat needs to be highlighted. The study isbased primarily on interview data: on what clan officials said, rather than whatthey did. This limitation may affect the reliability of the findings to someextent, although the workshop discussion and trial simulation providedsome grounds for confidence that claims in interview did in fact representactual practice. That, combined with the fact that all Jo-Gem and MorwaGuma clan courts in Budama North were represented in the interviews,marks this study of traditional legal institutions of the Jopadhola people asground breaking.

The JopadholaThe Jopadhola ethnic group, who live mainly in West Budama County,Tororo district in Eastern Uganda, bordering Kenya, are from the Nilotic lin-guistic cluster. Their language, Dhupadhola, is similar to two Niloticlanguages of Alur and Kenya Luo. 70–80 per cent of the Jopadhola livebelow the poverty line.17 Their activities are mainly subsistence agriculturalfarming, on land held under customary land tenure. They call this landPadhola which, according to renowned historian Bethwell Ogot, is an ellipticform of “Par Adhola” meaning the “place of Adhola”: founder father of theJopadhola. Officially, Padhola is called Budama, but according to traditionthis is the Kiganda version of “‘Widooma’ a Jopadhola war cry: ‘You are introuble’”.18

Traditional beliefs govern Jopadhola everyday life, but to varying degrees.For instance, people believe in Were [an omnipresent Christian god], kuni[clan shrines] and a common religion, Bura; they also have a deep rootedfear of jwogi [evil spirits].19 Pervasive belief in mysticism thus remains an inte-gral part of social organization.

The social structure of the Jopadhola can be described as polysegmentarybecause there is no traditional centralized government and its organizationis limited to a clan. Currently, 52 clans are listed in appendix III to theTieng Adhola Constitution. A clan is defined as a cultural sub-divisionknown as the nono that shares cultural practices, common ancestry andlanguage (Dhupadhola), but has a distinct lineage.20 Jopadhola clans are

17 Uganda Bureau of Statistics and International Livestock Research Institute Where are thePoor? Mapping Patterns of Well-Being in Uganda (2003, Regal Press) at table 4.11 A.

18 B Ogot History of the Southern Luo: Volume 1: Migration and Settlement 1500–1900 (1967, EastAfrican Publishing House) at 85. The war cry was against the Baganda who invadedPadhola and were vanquished.

19 H Mogensen “The resilience of Juok: Confronting suffering in Eastern Uganda” (2002) 73Africa: Journal of the International African Institute 420 on Jopadhola belief in Christianityand fear of jwogi.

20 Constitution of Tieng Adhola (2006 edition), chap 22, paras 25(14)(a), (b) and (c). TiengAdhola was established in 1992 by the 52 clans. Its constitution aims to unify clansunder one head: Kwar Adhola. Interview with Mr MO: the Kwar Adhola (15 August 08).Owor “Making international sentencing”, above at note 15 at 195.


patrilineal. Descent is traced through the father’s line and each lineage ismade up of closely related families who claim ascendancy from a commongrandfather or founder of the clan.21 What is not in dispute is that theJopadhola are descendants of Adhola and that Owiny (his brother) migratedto Kenya where he later formed the Ja-Luo.

A distinguishing feature of clan formation among the Jopadhola was thatmembership of the kinship system depended on biological relationship or“fictional agnation” (relations through the male line). The Jopadhola letnon-Nilotic groups live with them, absorbing them in Jopadhola clans andeventually according them fictional agnation. The Morwa Guma clan, forinstance, originated from the neighbouring Iteso of Nilo Hamitic stock.They were adopted agnatically by the Sule clan. Following a split from Sule,Morwa Guma was recognized as an independent Padhola clan and possessesclan emblems like the kunu [sacred shrine]. The Jo-Gem, a sub-group of the(Nilotic) Luo Jok-Omolo, migrated from river Yala in Nyanza-Kenya toPadhola. The Jo-Gem was likewise absorbed agnatically by the Oruwa PaDemba clan, but broke away in 1996 preferring to follow its sub-culture.The Jo-Gem is now autonomous and possesses a kunu.22

This adaptation process continued during the colonial and post-colonialeras when clans were subjected to external pressure to transform their struc-tures. Clans survived by absorbing features they could not change, whileretaining a traditional communitarian approach to the composition of clancourts.

Metamorphosis of clan courtsKinship courts have been investigated at the fringes of academic literature. Inthis regard, Elias’s observations about the set up of courts being dependent onthe type of society (A and B) are very instructive. The group A type of societywas a strong, centralized political authority, based on the rule of chiefs orkings. The Buganda Kingdom in Uganda, for instance, had a “well orderedand regular system of courts with personnel of judges”, even court orderlies.Conversely, group B types (like the Jopadhola) were a “segmentary un-centralisedpolitical community” where kinship was powerful, and cultural and ethnichomogeneity was the imperative.23

Pre-colonial eraThe traditional court system functioned within kinship, law, religion and cul-ture, underpinned by philosophical foundations in the African variant of

21 N Sudarkasa “African and Afro-American family structure” in J Cole (ed) Anthropology forthe Nineties: Introductory Readings (1988, Free Press) 182 at 183–87 and 198–99.

22 Owor “Making international sentencing”, above at note 15 at 170–77; Ogot History of theSouthern Luo, above at note 18; F Burke Local Government and Politics in Uganda (1964,Syracuse University Press) at 193, 196–98 and 240.

23 T Elias The Nature of African Customary Law (1956, Manchester University Press) at 11–12,30 and 216.


humanism called Ubuntu.24 Ubuntu finds expression in the rule of reconcilia-tion that restores society’s equilibrium through principles similar to grouprights and natural justice. Group rights, M’baye explains, applied to societieslike clans where individuals were users of collective rights by virtue of belong-ing to a clan, family or ethnic group.25 In effect, the entire clan was involved inthe administration of justice through a communitarian notion of humanrights.

Since the Jopadhola had no centralized government, there was no separ-ation of powers. Jopadhola law was not legislated as such, but derived fromcustom that was tied to the supernatural. Societal norms applied to the well-being of members and cohesion of the unit.26 New norms were generated inthese acephalous societies, most probably by tribal compact or a public assem-bly where chiefs, elders and the public would debate the community’saffairs.27

Group B societies had no permanent court. Nevertheless, scant evidenceexists of an organized judicial system that recognized certain elders “as tra-ditionally qualified and entitled to participate in the adjudication of disputes”,based on their seniority as members of the social unit.28 Mair argues, convin-cingly in the author’s view, that clans recognized the authority of older men asthe elders to resolve disputes. The most essential quality of an elder was hisability to soothe angry feelings and prevent fights.29 Among the Jopadhola,disputes were handled by the clan leaders and elders who regularized an indi-vidual’s relationship with their kin and other communities.30 Therefore, itseems evident that the pre-qualification and appointment to the court (anexecutive function) was determined by clan leaders who were all elders (thatis to say, old men). To Kakooza, this segmentary organization was effectivebecause it lacked a single source of overall authority. To ensure conformitywith the law, traditional leaders had to woo the clan as its members bore little

24 “Umuntu ngumuntu ngabantu” [a person can only be a person through others]: Y Mokgoro“Ubuntu and the law in South Africa” (1998) 1/ 1 Potchefstroom Electronic Law Journal 1 at2, citing L Mbigi and J Maree Ubuntu: The Spirit of African Transformation Management(1995, Sigma Press) at 1–7. The concept of Ubuntu is also discussed by Judge Mokgoroin State v T Makwanyane and M Mchunu CCT/3/94, delivered on 6 June 1995, 1 at 171,para 308.

25 R Mqeke “Customary law and human rights” (1996) 113 South African Law Journal 364 at365, citing M Gluckman “Natural justice in Africa” (1964) 9 Natural Law Forum 22 at 25and K M’baye “The African conception of law” in R David (ed) InternationalEncyclopaedia of Comparative Law vol II chap 1 (1975, Martinus Nijhoff) at 138, para 225and 148, para 257.

26 Burke Local Government, above at note 22 at 240.27 A Allott “The people as law-makers: Custom, practice, and public opinion as sources of

Law in Africa and England” (1977) 21/1 Journal of African Law 1 at 8–10; Elias TheNature of African Customary Law, above at note 23 at 198–99.

28 Elias id, at 11-12, describing the Ibo of Nigeria.29 L Mair Primitive Government (1970, The Scolar Press) at 49, on the Luhya of Kenya.30 Burke Local Government, above at note 22 at 192.


loyalty to them.31 For this reason, clan members may have had a voice indetermining the security of tenure and removal from office of clan officials.

Equally important was the control of supernatural activities. Jopadhola tra-ditional belief included the Bura and kuni [clan shrines]. The gods of kunispeaking through a designated clan leader provided spiritual guidance byrevealing what actions needed to be taken to protect the clan if it wereattacked by enemies.32

In communities with patriarchal heritage, power relations emasculated thegroup rights of women and youth to sit on the clan courts. Driberg’s accountof the legal status of Nilotic women established that they had to be rep-resented by a male relative or other male.33 This implies that women couldnot preside over or sit on the clan courts: convincing evidence of their inferiorposition in the clan. It appears that youth similarly had no position on theclan court. The dearth of literature on this point is most likely because delib-erations and decision making were done by adults who did not consider thelack of youth representation to be worthy of comment. Clearly, youth occu-pied a lesser position, like women.

Thus, in pre-colonial times, kinship was the central unifying force. Therewas no formal separation of powers. Qualification, appointment and removalof clan court officials were determined through adult suffrage based on acommunitarian notion of rights. Managing spiritual activities was equallyimportant for the protection of the clan. Nevertheless, it is evident that clancourts were controlled by male elders, so women and youth were not on anequal standing.

Colonial eraOn 19 June 1894 Uganda became a British protectorate. The country was sub-jected to “indirect rule” through which the different ethnic groups continuedto administer their territories using customary law, and adjudicate theircrimes in a like manner.34 Still, there were major changes regarding adminis-trative and judicial features.

First, in 1901, a Muganda chief, Semei Kakungulu, ruthlessly imposed theBuganda administrative system that divided Budama into saza, gombolola,

31 JMN Kakooza “Uganda’s legal history in a nutshell” (1993) 1/1 Makerere Law Journal at 2,cited in E Beyaraza Social Foundations of Law: A Philosophical Analysis (2003, LawDevelopment Centre Publishers) at 112.

32 A Oboth-Ofumbi Lwo (Ludama) Uganda: History and Customs of the Jo Padhola (1960, EaglePress) at 67–69.

33 H Driberg “The status of women among the Nilotics and Nilo-Hamitics” (1932) 5 Africa:Journal of the International African Institute 404 at 419.

34 Kanyeihamba Constitutional and Political History, above at note 3 (1st edition, 2002,Fountain Publishers) at 7–10; J Oloka-Onyango “Law, custom and access to justice in con-temporary Uganda: A conceptual and analytical review” (paper prepared for NewFrontiers of Social Policy World Bank Conference, Dar Es Salaam, December 2005) partII, paras 2.1–2.2.


miluka and pecho [village].35 Secondly, the Buganda centralized system wasintroduced, in which a chief (judge) had the power to try cases.36 This changedthe decision making from kinship units to a chief with legislative and judicialpowers to preside over clan courts. For, as noted above, the Jopadhola adjudi-catory system had no place for a dominant court official.37 Thirdly, assessorswere introduced in civil cases involving locals under the Courts Ordinanceof 1909. In 1941, criminal cases could be heard with the help of assessorsappointed by the senior courts advisor under the Native Courts Act.38 Laterin 1957, the African district courts, at sub-county level, could sit with theaid of two assessors whose opinions were not binding on the presiding offi-cial.39 These courts, whose officials were appointed by the colonial adminis-tration, gradually moved away from the traditional public participatoryapproach that applied when all parties (litigants, assessors and judge) were per-sonally acquainted. A fourth change was the introduction of a prosecutor. TheMorwa Guma clan asserts that the position of prosecutor in its courts existedsince the 1960s. Based on the legislative reforms noted above, the authorsuggests that this structure was most likely assimilated in the 1960s fromthe African district courts.

Although the Jopadhola fought to protect their diminishing jurisdiction,they adapted to Kakungulu’s imposed administrative structures by creatinga hierarchy of clan leaders to mimic the local government system. However,the authority of clan leaders’ did not necessarily coincide with the govern-ment administrative regions. Moreover, the Jopadhola did not differentiatebetween the official local government system and clan courts. To them, kin-ship organization was the everyday government responsible for sanctioningcertain behaviours and prohibiting others. The official chiefs found thatthey had to rely on the authority of clan leaders to do their work.40 The out-come was the operation of clan courts “conjoined” with the African districtcourts.

Despite legislative reforms, Jopadhola clans continued to determine thequalification, appointment and tenure of their “judicial” officials and to usean abridged notion of separation of powers. The combined effect of colonialrule was to reinforce women and youth’s subordinate position in the clancourts.

35 Burke Local Government, above at note 22 at 197–98.36 J Roscoe The Baganda: An Account of Their Native Customs and Beliefs (1965, Frank Cass and

Co Ltd) at 241.37 In isolated instances, the Jopadhola left the power of determining guilt to be exercised

by one individual (Burke Local Government, above at note 22 at 218), but there is no evi-dence to suggest this was a widespread practice.

38 The Courts Ordinance 1909, secs 51 and 52. The Native Courts Act (chap 40), sec 4(1).39 African Courts Act (chap 38), secs 4(1), 4A(1) and (2)(f).40 Burke Local Government, above at note 22 at 188–89.


Post-independenceThe legislative abolition of traditional courts was finalized following Uganda’sindependence. Under article 24(8) of Uganda’s 1962 IndependenceConstitution, all laws were subject to the doctrine of legal certainty: nullumcrimen sine lege, nullum poena sine lege [any offence or punishment must be writ-ten in law]. This doctrine was ill suited for the communitarian nature ofsocieties like the Jopadhola, whose laws were oral and unwritten. Yet legal cer-tainty was retained in the subsequent constitutions of 1966 (article 15(8)), 1967(article 15(8)) and the present 1995 constitution (article 28(12)).

Constitutional disenfranchisement of traditional courts was followed bysimilar moves at the statutory level. The Magistrates Courts Act 1964 (MCA) cre-ated a single hierarchy of magistrates courts with powers to administer cus-tomary law in their areas of jurisdiction, in so far as it was not “repugnantto natural justice, equity and good conscience”.41 The MCA arrogated the jur-isdiction of traditional courts to administer criminal justice in accordancewith customary practices and oral laws. Although indigenous communitieslost their autonomy to make decisions about their legal system, clan courtssurvived. So, in post-independence Uganda, two different normative systems(traditional and national) co-exist, each with divergent ideologies.

To conclude, this demographic and historical background shows how clansassimilated and resisted external pressure to change their structures. Clanstransformed by accommodating features from the state, while preserving tra-ditional methods of clan participation in the creation of “their” independentcourts. This modus operandi still applies today.

CLAN COURTS UNDER UGANDA’S LEGAL FRAMEWORK

The full force of the Guidelines that obligate clan courts to apply internationalhuman rights law is somewhat diminished in the case of Uganda, because thestate does not accept liability for their shortcomings. For example, there is nolaw that guarantees the existence of clan courts, far less their independence.The Constitution only provides for a standing committee on cultural mattersunder a regional assembly of districts. The committee, comprising representa-tives of cultural interests, is intended to have exclusive jurisdiction on culturalmatters, including traditional and cultural practices that are consistent withthe Constitution. This regional tier of governance is not yet in force becauseParliament has yet to prescribe the composition of the Regional Assembly.42

Besides, customary criminal matters fall outside the remit of this assembly.Under article 37 of the Ugandan Constitution, the state as the primary duty

bearer has an obligation to ensure the continued existence of a cultural

41 Magistrates Court Act chap 36 (1964), secs 3, 9(1) and 15(1)(a). Under sec 10(1) of the MCA(2000), civil customary law is applicable, subject to the “repugnancy” clause.

42 The Constitution, art 178 and 5th schedule, clauses 2(1) and 3(3)(h). Cultural affairs arehandled by district councils under schedule 2 part 2, sec 5(z) of the LGA.


community and to support cultural institutions. Despite this manifestation ofconstitutional recognition, criminal jurisdiction is not granted to culturalinstitutions. This is because, under article 28(1) of the Bill of Rights, a personis entitled to a fair hearing before an independent court or tribunal “estab-lished by law”. Also, article 28(12) of the Constitution prohibits the convictionand punishment of offenders for offences that are not written in law.Traditional criminal laws are unwritten and clan courts are not establishedby law. Absent a constitutional amendment to article 28, any clan court exer-cising criminal jurisdiction in accordance with traditional criminal laws actsoutside the scope of the Constitution.

RESEARCHING CLANS’ ADAPTATIONS OF HUMAN RIGHTSSTANDARDS

The lack of interest in how clan courts that operate outside state lawmight pro-tect (rather than jeopardize) international human rights standards, is mir-rored in the paucity of academic scholarship in countries where suchtraditional courts exist. As Benda-Beckmann notes, most analyses tend tofocus on issues where social life and adjudication is governed by customarylaw under a national legal system, leading to deficiencies in the socio-legalanalytical framework when studying western “law out of context”. Theinterpretation and application of state (“western”) law by local communitiesis not viewed as a proper process since it takes place outside national legal fra-meworks. He makes the empirical argument that: “[v]illagers reproduce whatthey consider to be ‘their’ normative system in everyday activities and pro-cesses of decision making”.43 While the imitation may be quite different insubstance and composition from traditional laws created in other contexts,Benda-Beckmann persuasively argues that such reproduction of normativeconceptions outside state law or original traditional law must be treated atthe same analytical level to give a fuller understanding of local traditionsand their laws.44

What’s more, as Woodman convincingly argues, the abolition of customarylaw brought about by legislative reforms, does not change the social conductof its observance. Rather, there exist recorded instances, such as M Bussani’sstudy on tort law in Ethiopia and Eritrea,45 of customary law being effectiveduring periods when the state followed policies of non recognition. ToWoodman, a concern with justice requires a methodological examination ofsocial justice of which the primary aspect is “the basic structure of society”.

43 F Von Benda-Beckmann “Law out of context: A comment on the creation of traditionallaw discussion” (1984) Journal of African Law 28 at 29.

44 Id at 29–33.45 M Bussani “Tort law and development: Insights into the case of Ethiopia and Eritrea”

(1996) 40/1 Journal of African Law 43 at 47, cited in G Woodman “Legal pluralism andthe search for justice” (1996) 40/2 Journal of African Law 152 at 164, note 38.


Such an examination, he correctly points out, is rare.46 For example, the mostcomprehensive studies in Uganda are those of the state-governed local councilcourts, which only apply national penal laws using limited customary pro-cesses. However, as Barya and Oloka-Onyango persuasively argue, these “popu-lar justice” courts were not an attempt to revert to tradition, but only toprovide a semblance of a traditional approach to judicial power.47 Suchstudies do not delve into the independence of traditional courts.

Elsewhere, the South African Law Commission (SALC) has examined theindependence of statutory traditional courts presided over by chiefs and head-men. SALC identified normative divergence, specifically the lack of separationof powers, absence of legal qualifications of officials and exclusion of womenfrom the composition of traditional courts.48 Koyana also notes the inferiorposition of women in the headmen courts, where decisions were based onthe opinions of wise men of the community.49

Scholars like Elechi have conducted a methodological examination of socialjustice of the type that Woodman suggests. Elechi’s seminal work on theekpuke essa [age-grade] courts among the Afikpo of Nigeria, gives insight intoindigenous traditional courts operating outside state law despite the existenceof statutory traditional courts. Ekpuke Essa courts are made up of middle andsenior sub-grades with elderly men (in their 50s and 60s) who are drawn fromthe age sets. The men are elected based on their knowledge of customs, ora-tory skills and wisdom. Most importantly, ekpuke essa courts combine legisla-tive and judicial functions. Of equal significance is Elechi’s finding thatwomen are not among the ekpuke essa judges. Despite having equal locus standi[legal capacity] as men and being able to bring cases in their own right or on

46 Woodman, id at 157–59 and 163–64. The legal character and social significance of cus-tomary law remains firmly established. Even in the African variety of “deep” legal plur-alism, where state law co-exists with customary law, the imposed state law was verydifferent from pre-colonial indigenous laws.

47 J Barya and J Oloka-Onyango Popular Justice and Resistance Committee Courts in Uganda(1994, New Vision Printing and Publishing Corporation) at 46. See also B Baker“Popular justice and policing from bush war to democracy: Uganda 1981–2004” (2004)32 International Journal of Sociology of Law 333; Nordic Consulting Group “Survey of LCcourts and legal aid providers findings: Tororo district” (2006) and L Ekirikubinza“Juvenile justice and the law in Uganda: Towards restorative justice” in L Lindholt andS Schaumburg-Muller (eds) Human Rights in Development Yearbook 2003: Human Rightsand Local / Living Law (2005, Martinus Nijhoff Publishers) 295.

48 SALC “The harmonisation of the common law and indigenous law: Traditional courtsand the judicial function of traditional leaders” (discussion paper 82, Project 90, May1999) at 13–15, available at: <http://www.justice.gov.za/salrc/dpapers/dp82_prj90_tradl_1999.pdf> (last accessed 3 July 2012). The memorandum of the South AfricaTraditional Courts Bill [B 15-2008], introduced in the National Assembly on 7 July2009, seeks inter alia to “provide for the structure and functioning of traditional courtsin line with constitutional imperatives”. The bill is available at: <http://www.justice.gov.za/legislation/tradcourts/B15-2008.pdf> (last accessed 3 July 2012).

49 D Koyana Customary Law in a Changing Society (1980, Juta Publishers) at 130.


behalf of other people, women do not sit on the court.50 Elechi’s findingsdemonstrate that ekpuke essa courts bear similar normative features to SouthAfrica’s traditional courts: conflation of powers, lack of legal qualificationsand inequality in representation.

Comparatively, Griffiths’s study on the gendered power relations in mar-riage among the Bakwena of Botswana exemplifies that kgotla [public assem-bly] courts are perceived as a “men’s space”. There, the mediator is a man,usually the headman of the family kgotla, the ward head or official of thechief’s kgotla.51 Likewise, Chase’s examination of oracular justice among theAzande in Central Africa highlights the unequal position of women and chil-dren. They are not permitted to consult or operate benge [the poison oracleused to determine contested facts], a process controlled by the (all male)chief’s court.52 Griffiths and Chase, however, do not conduct a legal analysison the independence of the kgotla and chief’s courts.

Further, in a survey of public perceptions about traditional leaders in Africa,Logan makes one important finding: customary societies are adept at integrat-ing incompatible institutional structures. While accentuating the irrefutableimportance of customary leaders in localized socio-political life, includinglocal justice,53 Logan does not systematically consider how societies integratemismatched structures (such as judicial features) into their institutions.

This review of academic scholarship reveals three underlying problems. Firstis the use of legal intervention by the state to enforce “rationalization” of tra-ditional courts with national law. This approach fails to accommodate the tra-ditional notion of an independent court. The second problem is a principallegal objection to traditional courts: their normative features are inimical tointernational human rights standards for an independent court. More impor-tantly, the review reflects the gaps in knowledge on how traditional normativeframeworks adapt “foreign” laws to create their notion of an independent court.For that reason, there is much to learn about how local communities do this.

CREATING AN “INDEPENDENT” CLAN COURT

In presenting the main findings, this article sets out a thematic appraisal ofthe study participants’ views on an independent court, particularly theirapproach to the separation of powers, manner of appointment, qualifications,

50 O Elechi Doing Justice Without the State: The Afikpo (Ehugbo) Nigeria Model (2006, Routledge)at 75–80, 118–21, 136–42 and 166–71. An age grade is an organization of people born in avillage within roughly a three year period. Women have analogous institutions toresolve conflicts arising among themselves.

51 A Griffiths In the Shadow of Marriage: Gender and Justice in an African Community (1997,University of Chicago Press) at 113 and 117.

52 O Chase Law, Culture and Ritual (2005, New York University Press) at 24–25.53 C Logan “Traditional leaders in modern Africa: Can democracy and the chief co-exist?”

(Afrobarometer working paper no 93, February 2008) 1 at 5 and 23, available at:<http://pdf.usaid.gov/pdf_docs/PNADL326.pdf3> (last accessed 3 July 2012).


security of tenure, equitable representation and mysticism. It starts by estab-lishing the normative considerations that underpin Jopadhola administrationof justice.

Jopadhola clans apply their own concept of a fair trial based on Ubuntu,where individuals are users of collective rights by virtue of belonging to aclan. This view is also in line with the definitions of Gyekye (discussed pre-viously), Cobbah and Sudarkasa. Cobbah maintains that social roles withinkinship are rights which each member possesses and duties which each mem-ber has towards his kin; so entitlements and obligations underpin the kinshipsystem.54 To Sudarkasa, the right of one kinship member is the duty of theother. The duty for the other kinship member is the right of another.55 Infact the word “right” is a misnomer, for participants described human rightsas chik ma yiko kwo pa ji jie [laws that protect the lives of all people]. Jie denotes“everybody” as contrasted with dhano [a person] or ani [me]. The use of jietherefore reflects a communitarian nature of self that, as Ikuenobe correctlyputs it, has the notion of a moderate sense of individual autonomy that avoidsextreme independence or the lack of it.56 This ensures that the trial is fair toboth the individual and the community. Within this communitarian setting,Jopadhola clans reproduce what they regard as their normative standard of anindependent court.

The Jopadhola notion of separation of powersAt first blush, section Q(c)(1) of the Guidelines obliges states to ensure that tra-ditional courts remain separate from the state’s executive branch. This meansthat customary courts conform to human rights standards of independence.Viewed more critically, section Q leaves open the question of what comprisesan independent traditional court. The resolution of this issue is left to the vag-aries of kinship government.

Non-separation from the state’s executiveThere is no guidance from the African Commission on the precise meaningof “independence from the executive” as set out in section Q(c)(1). However,in Bahamonde v Equatorial Guinea the Human Rights Committee consideredthat, where functions of the judiciary and executive were not clearly dis-tinguishable or where the executive is able to control the former, this isincompatible with the idea of an independent and impartial tribunalwithin the context of article 14(1) of the ICCPR.57 If the Human Rights

54 J Cobbah “African values and the human rights debate: An African perspective” (1987) 9Human Rights Quarterly 309 at 320–21.

55 N Sudarkasa “African and Afro-American family structure: A comparison” (1980) 11 BlackScholar 37 at 44.

56 P Ikuenobe “Moral education and moral reasoning in traditional African cultures” (1998)32/1 Journal of Value Inquiry 25 at 40–41.

57 Olo Bahamonde v Equatorial Guinea comm no 489/1991: UN doc CCPR/C/49/D/486/1991(1993), para 9.4.


Committee’s definition is extrapolated to section Q(c)(1), then clan courtsshould be completely separate from the state’s executive branch. This ismore so because, under Uganda’s legal framework, clan courts are not “stat-utory” traditional courts, being neither regulated by law nor a part of thegovernment.

The Jopadhola word for a clan court is koti (plural: koti), borrowed from theEnglish word “court”. Participants explained that a koti belongs to every clanmember because, collectively, each person has a stake in determining the cri-teria for qualification, appointment and tenure of koti officials. Ostensibly, akoti comprises clan members only.

An unexpected finding then was that all three tiers of Jo-Gem clan courts(figure 1) include a local government village executive official: the local coun-cil chair.

According to Jo-Gem respondents: “[t]he clan call a representative of govern-ment like the LC [local council] 1 chairman, and the clan chair of the area thenthey sit during that time to hear the case [sic]. The LC 1 chairman helps theclan to ensure that they decide the case without breaking the law of the gov-ernment.”58 The chair of the local government village council level 1, referredto in this quote as the “LC 1 chairman”, sits ex-officio in all Jo-Gem clan courts.The LC 1 chairman’s role in the clan court is different from the official oneperformed ordinarily. The chairman is head of the lowest government admin-istrative unit, political leader of the council and chairs the local councilcourt.59 The chairman therefore combines legislative, executive and judicialfunctions.

Inversely, in all Jo-Gem koti, the LC 1 chairman is only invited to sit in aquasi-judicial capacity (though not as chair) to ensure that the koti adheresto national law. It may be suggested that the LC 1 chairman oversees the pro-tection of the right to a fair trial by the koti. The clan head called ja gombolola,ja miluka or ja kisoko, sits as the ex-officio chair of their koti, assisted by three jokony [helpers] called assessors who advise on clan law and make decisions. Theja kalani [secretary] takes minutes. Of note, in Morwa Guma courts, local coun-cil officials are only invited like any other clan member to participate in pro-ceedings. As depicted in figure 2, the LC 1 chairman is part of the audience,seen here welcoming clan members to his village. He is not one of the kotiofficials.

Thus, in the context of section Q(c)(1) of the Guidelines, the presence of theLC 1 chairman on the Jo-Gem koti signifies an “abridged” notion of the legaldoctrine of separation of powers: one that combines the lower level stateexecutive with traditional “judicial” officials. In this sense, Jo-Gem koti donot meet regional standards for an independent court that demand separ-ation of traditional courts from the state’s executive.

58 Jo-Gem gombolola court participants.59 LGA, sec 50. LCCA, sec 4 and Local Council Courts Regulations (SI 51/2007), rule 13(1).


Conflation of executive and judicial functionsIn order to adopt a more expansive reading of section Q(c)(1) as referring to theindependence of traditional courts from kinship government, then kotishould be independent of the executive organ of each clan: the nono.However, Jopadhola courts are not independent of their executive bodies. AsSanders states, traditional government is by discussion and consent, doingwhatever possible to ensure cohesion of the group. Likewise, traditionallegal proceedings are a community affair aimed at reconciling parties.60

Extrapolating Sanders’s reasoning to Jopadhola clans shows that, in adheringto the principle of governance by public participation, traditional governmentcombines legislative, executive and judicial functions.

This conflation of powers also present in the Jopadhola courts was explainedas follows. The nono comprises the heads of all clan units who are answerableto adult clan members, collectively called the ju nono. Participants pointed outthat the nono has no legislative authority to repeal or amend chik [law] becauseof the mystical nature of Jopadhola chik, derived from custom. Still, as thesupreme policy making body of each clan, the nono carries out executiveand judicial functions. In its executive capacity, the nono organizes electionsof clan heads and court officials and oversees their appointment and dismis-sal. Any clan head also exercises judicial functions while sitting as the (execu-tive) ex-officio chair of the koti. This point is best illustrated by the MorwaGuma courts’ composition outlined in figure 3.

The Morwa Guma Constitution provides for a judge as a position in leader-ship, but not as a separate judicial entity.61 As a result, in the higher saza and

Figure 1. Hierarchy of Jo-Gem clan courts

60 AJGM Sanders “Comparative law and law reform in Africa, with special reference to thelaw of criminal justice” in Takirambudde (ed) The Individual, above at note 11, 148 at150–51.

61 Chik Ma Pa Nono Morwa Guma Malasang [Constitution of the Morwa Guma Malasang clan](1985), chap 13(34)(vii).


p’oriwa courts, positions exist for both judge and clan head. The latter has judi-cial powers to hear cases on a par with a judge. For instance, the ja saza has thesame judicial powers as the ja thum banja [judge] of the saza koti. In the appel-late p’oriwa koti, the kwar nono has equal judicial authority as the judge. Likethe Jo-Gem, the gombolola and the lower miluka and kisoko courts are allchaired by a clan head (see figure 3). The gombolola court also has a deputychair. Notably, all (eight) jo kony from the lower courts (two assessors percourt) sit in the p’oriwa. Similar to the Jo-Gem, jo kony here have powers tohear evidence and determine both verdict and sentence.

Executive members, some of whom are pictured in figure 2, sit in the kotiand participate in decision making. In the p’oriwa they are the: adha nono[grandmother of the clan], ja kiosa [prosecutor], kalani [secretary], ja kani [treas-urer], ja luwo [speaker], ja kow wach [publicity secretary] and ja chowiroki [per-son in charge of rituals]. The saza and gombolola courts have the: adha nono[women] representative and soye [youth] representative, secretary, treasurer,prosecutor, ja kika [funeral chair] and ja kony pere [assistant] who collectskika [money to help with funeral expenses of a clan member]. The lower kisokoand miluka courts each have a secretary, and women and youthrepresentatives.

Clearly then, the composition of the Morwa Guma and Jo-Gem clan courts,viewed in the context of section Q(c)(1), partially mimics the composition ofcourts of law by having a judge, assessors and a prosecutor. The hierarchy ofcourts of both clans retains the colonial local government divisions of saza,gombolola, miluka and kisoko (formerly pecho). Additionally, the lower level

Figure 2. Trial simulation re-enacting a clan court session. © Maureen Owor(2006)


local government LC 1 chairman is invited to sit in Jo-Gem courts. That a clanleader wields executive power and also exercises a judicial role as the ex-officiochair of the koti, demonstrates the lack of separation of powers between execu-tive and judicial functions of the nono. These findings support the SALC litera-ture, Elechi’s study of ekpuke essa courts, and Burke and Elias’s descriptions ofsegmentary societies. This lack of separation extends to the manner ofappointment where, in carrying out executive functions, clan leaders use aparticipatory approach that accommodates ju nono decisions.

Manner of appointmentThe underlying assumption in section Q(c)(1) of the Guidelines is that theappointment procedure for national courts can be replicated in a traditionalcontext. This supposition is explicit in section Q(c)(1) that reproduces sectionA(4).62 Under section A(4)(h), the process for appointment to judicial bodiesshall be transparent and accountable and an independent body shall be cre-ated for this purpose. This body also aims to safeguard the independenceand impartiality of judicial officers. As the Human Rights Committee has

Figure 3. Hierarchy of Morwa Guma clan courts

62 Under sec A(4)(a), national laws shall guarantee the independence of judicial bodies.Sec A(4)(g) protects the autonomy of judicial bodies from the executive branch.


stated, the manner of appointment determines whether a court of law is inde-pendent and fair.63 That way, the individual’s right to a fair trial by an inde-pendent court is protected. The fact that no guidance exists in section Q(c)on the manner of appointment may be because, as implied in section S(1), tra-ditional courts are created in accordance with cultural norms and customs.Yet, modernists criticize customary forms of governance, maintaining thattraditional authorities rely on deference and place the community ahead ofthe individual, thereby hampering the growth of a just and democraticsociety.64

A surprise result then was the egalitarian manner of appointment by thenono of each clan. Participants made clear that appointments are based onadult suffrage and meritocracy (the exemplary performance of social obli-gations), or “[t]he contribution of the individual to the community, their abil-ity and behaviour”.65 Meritocracy and adult suffrage aim to achievetransparency and a democratic appointment process.

The Jo-Gem clan follows a conservative traditional approach. Appointmentsare by the nono, through adult suffrage of the ju nono. There are no regularelections and no campaigns are permitted. Meritocracy is an imperative, foras Mr AO, the supreme Jo-Gem elder said: “[y]ou cannot simply want thisjob.” The only exception is the LC 1 chairman who sits ex-officio.

The Morwa Guma appointments depict an innovative approach that com-bines meritocracy with democratic elections. To this end, chapter 11 of theMorwa Guma Constitution provides that leaders “must be good clans’ people[sic]”. In this respect, the Morwa Guma underscores meritocracy in much thesame way as the Jo-Gem. The main distinction is the election of court officialsby an electoral committee. The concept of an electoral body, according toMr RO, was borrowed from the government in 1985. In the author’s view,the idea of a specific institution to oversee elections was probably copiedfrom Uganda’s first ever multi-party elections in December 1980, organizedby the commission for the 1980 general elections. Though the compositionof the Morwa Guma’s electoral committee is not specified, the presiding offi-cer is an okewo [a nephew to the clan]. An okewo is perceived as neutral, sincehe is not a clan member. Canvassing and campaigns are permitted, and votingis by lining up [bol] behind a candidate.66

63 Human Rights Committee “General comment 13”: UN doc HRI/GEN/1/Rev.1 (1994) at 14,para 3.

64 Logan “Traditional leaders”, above at note 53 at 3–4, citing R Mattes “Building a demo-cratic culture in traditional society” (paper presented to the International Conferenceon Traditional Leadership in Southern Africa, at the University of Transkei, Umtata,South Africa, 16–18 April 1997) at 6 and M Owusu “Tradition and transformation:Democracy and the politics of popular power in Ghana” (1996) 34(2) Journal of ModernAfrican Studies 307 at 330.

65 Interview with Mr YO.66 Morwa Guma Constitution, above at note 61, chap 11, para 32.


As noted earlier, under Morwa Guma law, a judge is not separate from lea-dership functions. To this end, the appointment of judges is, as for other clanoffice bearers, by election, in contrast to national courts. Appointment ofmagistrates by the Judicial Service Commission (JSC)67 is based on an individ-ual’s legal qualifications and experience, not contributions to the communityand certainly not by adult suffrage. Likewise, under article 142 of the UgandanConstitution, judges are nominated by the JSC, vetted by Parliament andappointed by the president. Kanyeihamba correctly observes that the appoint-ment process for judges in Uganda is “rigid”.68 To Madhuku, subjecting thenominees to parliamentary approval (people’s representatives), is intendedto be a check against the “spectre of political pressure on the appointmentprocess”.69 Thus, Parliament may reject an appointment to obtain a morereasonable proposal. For the Morwa Guma, appointment of judges is byadult suffrage of the ju nono. To them this is a democratic, transparent processin which those who lack a sense of social obligation are rejected.

The concept of a prosecutor (as representative of society’s interests) in thehigher Morwa Guma courts is adapted from the state’s director of public pro-secutions (DPP). Appointment of the DPP and staff, however, differs signifi-cantly from that of the prosecutor in the Morwa Guma courts. The latter isappointed by the nono based on meritocracy, following election by adult suf-frage. Conversely, the DPP is nominated by the Public Service Commission(PSC), vetted by Parliament and appointed by the president under article 120(1) of the Constitution. Other employees, state attorneys and lay prosecutorsare appointed by the PSC.

Participants explained that the term “assessor” used by both clans, is bor-rowed from the courts of law. In the magistrates courts (for civil customarymatters) and the High Court, assessors are pre-selected from a list preparedby the chief magistrate,70 then appointed by the presiding judge or magistrate.By contrast, assessors in both clans are elected by adult suffrage based onmeritocracy.

To summarise, the clans use traditional and modern approaches where thenono guarantee that the ju nono participate through adult suffrage in theappointment of all clan court officials including assessors, judges and the pro-secutor. The appointment process that borrows from national structures isbased on meritocracy. As Oomen contends, if participation and the “abilityto debate one’s destiny” can be regarded as essential to democracy, then cus-tomary leadership may be “more democratic than the elected local

67 Judicial Service Act chap 14 (2000), sec 5. Art 147(3) and 148 of the Constitution refers tothe appointment of judges and other judicial officers.

68 Kanyeihamba Constitutional and Political History, above at note 3 at 291–93.69 L Madhuku “Constitutional protection of the independence of the judiciary: A survey of

the position in Southern Africa” (2002) 46/2 Journal of African Law 232 at 237.70 MCA, rule 26, 3rd schedule. Schedule to the Trial on Indictments Act chap 23 (2000),

assessors rules 1 and 2.


governments with which they supposedly compete”.71 These findings confirmthat the procedure of appointment is democratic and accountable in the localcontext.

QualificationsSection Q(c) does not specify the requisite qualifications for appointment to atraditional court, leaving its determination to the customary institutions. Asnoted earlier, the absence of legal qualifications is one weakness of statutorytraditional courts identified by SALC. As Madhuku argues, appointing froma restricted group who are subjected to professional standards and qualifica-tions, aims to ensure that appointments are made on merit.72 For instance,judicial officers in Uganda must be qualified to practise law under theAdvocates Act.73

The Jopadhola, by contrast, have no minimum educational qualifications aseligibility criteria to serve on the koti. Rather, they use a traditional approachwhere positions are open to any clan member, including the illiterate, to guar-antee equity. Important considerations for all posts are an in-depth knowledgeof Jopadhola clan laws and proficiency in Dhupadhola. This finding is consist-ent with Elechi’s study of the ekpuke essa which established that court eldersmust be erudite in local customs. A third consideration is one’s ability topacify angry litigants. As study participants explained: “[t]he clan muststrengthen the heart of the complainant so that he does not feel veryupset”.74 This statement is significant because it illustrates the competenciesexpected of a clan court official: a conciliatory approach that fosters reconcilia-tion between the parties.

By excluding legal qualifications, clans apply a communitarian notion ofrights where every clan member (aged 18 or older) has locus standi. As such,judicial and prosecutorial functions are shared between the judge, prosecutor,assessors, other clan officials and the community. Under shared jurisdiction,every kinship member has a “right” to be heard and to participate in the adju-dication process. This principle of even handedness is the benchmark for con-sidering whether a trial was fair to the individual and community. Publicparticipation contrasts rules of natural justice applied in local council courtsthat emphasize the right of individual litigants to be heard.75 One may arguethat the consequential lack of legal expertise implies that clan courts may notprotect individual rights during a trial. The clans’ counter-argument may bethat, since their eligibility criteria are not pegged to formal and legal

71 B Oomen Tradition on the Move: Chiefs, Democracy and Change in Rural South Africa (2000,Netherlands Institute for Southern Africa) at 64, cited in Logan “Traditional leaders”,above at note 53 at 23.

72 Madhuku “Constitutional protection”, above at note 69 at 241–42.73 The Advocates Act, chap 267 (2000), secs 1 and 8.74 Morwa Guma miluka court participants.75 LCCA, sec 24.


qualifications, it is appropriate to their non-technical public nature of custom-ary deliberations.

Although formal “westernized” education (and legal qualifications) are irre-levant, both clans have successfully combined these two contrasting levels ofinformal and formal education. For instance, assessors in the High Court mustunderstand the language of the court (English) with a “degree of profi-ciency”,76 which indicates they must have a formal education. By contrast,information provided by the study participants showed that all jo kony weresemi-literate farmers. The same applied to the ja chowiroki in the p’oriwacourt and all but one of the clan heads. Equally, the kalani were primary orsecondary school teachers. The benefit of this mix appears to be that the kalanican record court proceedings in both Dhupadhola and English. To this end,two copies of court records (on land matters) availed to the author by theNamwaya saza koti had translations in English. This is convincing evidenceof how the traditional system transforms itself to suit both local and moderncircumstances.

To summarise, the eligibility criteria for appointment are conservative asthey focus on individual disposition, proficiency in the local language andclan law. Additionally, educational and legal qualifications are disregardedbecause formal or legal training is not required due to the uncomplicated par-ticipatory nature of koti proceedings.

Security of tenure and removal of officialsSection Q(c) makes no mention of security of tenure for traditional court offi-cials. By contrast, section A(4)(n), (p) and (q) provide that judicial officials mustnot be appointed for a fixed term and can only be removed following strin-gent procedures and a fair hearing. Madhuku underscores the importanceof security of tenure, arguing that, if judges can easily be removed from office,then there is in reality no independence of the judiciary. Such a strict processalso exists in Uganda to prevent judges being “beholden” to any authority orperson.77 The Jopadhola process has similarities and differences.

The Jo-Gem clan has no fixed term of office. This appears to give somemeasure of security of tenure for the officials, as they may serve for as longas they are capable. The Morwa Guma clan by comparison has fixed tenurefor all officials. Under paragraph 31 of the Morwa Guma Constitution, elec-tions of clan office bearers are held every five years. A person is only eligiblefor re-election twice, giving a maximum tenure of 15 years. This practice is

76 Trial on Indictments Act, rule 2(1).77 Madhuku “Constitutional protection”, above at note 69 at 240. Kanyeihamba

Constitutional and Political History, above at note 3 at 291. The Constitution provides forthe removal of a judicial officer by an independent tribunal appointed by the president.Alternatively, the president may suspend or remove a judicial officer: art 144 (3)(4) and (5)of the Constitution.


consistent with Nowak’s reasoning that judges need not be appointed for life,but should serve for a relatively long period.78

Removal of officials under the Jopadhola procedure is subject to thedecision of the nono following consultations with the ju nono. To illustrate:under chapter 12, paragraph 33 of the Morwa Guma Constitution, the groundsfor removal of a clan leader include breaking clan law, such as: “[h]aving arelationship or eloping with a relative or any other behaviour that the otherleaders deem to fit into that category”.

One example given was of the dismissal of a clan official by the nono for con-cealing the fact that his son married a relative, in direct contravention ofMorwa Guma law. The leader was dismissed in disgrace and was not permittedto stand for any office again.

In summary, security of tenure and removal of an official is parochial, sub-ject to the nono acting on the consensus of the ju nono. Questions may be raisedfrom a legal perspective about the extent to which public participation indetermining the tenure and removal of “judicial” officials guarantees the inde-pendence of traditional courts. In response, the clans may argue that publicparticipation ensures integrity of the koti, as its officials are ultimately accoun-table to the ju nono.

Representation of women and youthThe Guidelines are silent on posts for women and youth on traditional courts.Nonetheless, one significant finding was the transformation of koti from bas-tions of patriarchy to institutions that ensure fair representation of womenand youth (aged 18 or older). Participants spoke of how koti accommodatethese interests through provision for women’s and youth representatives toensure their constituents are protected. These representatives are appointedin both clans in much the same way as other koti officials: through adult suf-frage based on meritocracy. This new development was adopted in 1992 fromthe government’s policies of equal representation in governance, concretizedin the local councils and their associated courts. Under the LCCA, one youthand two women’s representatives sit on lower level local council courts asex-officio members of the village or parish executive committee. A local coun-cil court comprises all members of that village or parish executive committee.Women and youth quotas in these executive committees are specified undersection 47(2)(h) and (i) of the Local Governments Act (LGA), following consti-tutional provisions in article 180(2)(b) and (c) of the Local Council Courts Act.79

The Jo-Gem clan does not assign posts for women or youth. Rather, itensures that all courts have women and youth members. The explanationgiven by Mr AO was that “[g]overnment laws do not permit women to be

78 Nowak United Nations Covenant, above at note 3 at 319–20, para 25.79 LCCA, secs 4(1) and 8(4)(a); Local Council Courts Regulations (2007), rule 19(1)(a). Youth

representatives are only provided for under the LGA, where the chair of the youth coun-cil may sit on the village or parish executive committee.


denied representation in anything nowadays”.80 Any clan member is eligibleto hold any post regardless of age or gender. Ultimately, each of the Jo-Gemcourts had at least one woman official. In the case of the court at the kisokolevel, there were two women (both of them assessors), quite unlike theMorwa Guma where all the assessors were men. The secretary to the Jo-Gemgombolola court was a young man. By not “compartmentalizing” positionsfor women or youth, the Jo-Gem guarantees wider representation for themat all levels. By contrast, the Morwa Guma has specific positions for womenand youth in all clan courts, although youth do not sit in the p’oriwa court.

To conclude, age and gender parity is one area where clans in the post-independence era have adopted lower level government features. This is incontradistinction to studies like that of Griffiths, which establish that tra-ditional courts (kgotla) are a “men’s space”. One explanation could be that,in an era of democratization, traditional leadership adapts to meet theneeds of modern day society in an effort to strengthen its position withinlocal communities.81 Accordingly, giving positions to women and youth inJopadhola patrilineal society ensures some semblance of fair representationin clan courts, which was previously lacking.

The spiritual overseerThe Guidelines are silent on the position of a spiritual overseer in traditionalcourts, yet supernatural activities are integral to localized African societies. Forexample, Jopadhola clans have kuni at which rituals take place, and the Buratemple at Nyakiriga is still in use. As Chase contends, rituals are ceremoniesthat are used to gain legitimacy in society. Using shared normative valuesand involving leaders and the audience in the performance of the rituals,help to authenticate a dispute process.82

It is worth mentioning that no distinction exists between civil and criminalmatters as is the case in a formal legal system. This characteristic of segmentedsocieties83 may be attributed to the restorative inclinations of the clan in pun-ishing the breach of social norms, like taboos, which make such a distinctionlargely pointless. Beyaraza explains that taboos are comparable to crimesattracting punishment in positive law, which clearly prescribes rules of whatto do or not to do.84 One such example is nywomo wat [incest]. Clan members

80 Interview with Mr AO.81 Logan “Traditional leaders”, above at note 53 at 6, citing JM Williams “Leading from

behind: Democratic consolidation and the chieftaincy in South Africa” (2004) 42/1Journal of Modern African Studies 113 at 115–16.

82 Chase Law, above at note 52, chaps 2 and 7, at 114–16.83 L Shaidi “Traditional, colonial and present day administration of criminal justice” in

T Mwene-Mushanga (ed) Criminology in Africa (2nd edition, 2002, Fountain Publishers)1 at 2.

84 E Beyaraza Contemporary Relativism With Special Reference to Culture and Africa (2004,Makerere University Printers) at 165–66. Such taboos aim to prevent hereditary diseasesfrom being passed on through inbreeding and to maintain group unity.


are regarded as being as close as blood relatives. Nywomo wat is believed tobring lusiwa [extreme bad luck] to the offenders, their families and entireclan. The sanction for such breach is largely compensatory. This taboo is but-tressed with mystical beliefs, so that only chowiroki [ritual cleansing] of any per-son afflicted by lusiwa removes the iniquity. Other social norms the breach ofwhich necessitates ritual cleansing include yeti manya ori [abusing an in-law]and lami [verbal cursing].85

One noteworthy finding was that koti sit in judgment on the breach of socialnorms within the court’s jurisdiction, “[f]or example: cursing, theft, witch-craft, adultery / fornication, murder or the ghost. All this behaviour if theclan does not cleanse as it is required, even if the government imprisons a per-son for ten years still the tendencies listed above will remain. This behaviourretards the clan until the person is cleansed in accordance with traditionalrites.”86

This excerpt demonstrates that, whereas clan jurisdiction covers “ordinary”crimes like murder, rituals take a central place in validating the clan court pro-cess. The passage portrays clearly that koti engage in “trials” that include a com-munal therapeutic style of social control where “criminal” acts may beattributed to supernatural forces. The whole community is then involved inthe “treatment”.87 Communal therapy therefore deals with deviance throughrituals where clan leaders and the community participate. The affected partiesare returned to normality and reconciled with the community.

Customary trials are not very different from the therapeutic interventiondescribed by Roberts, where family relationships that have broken down areexamined using professional techniques. Once the latent problems havebeen dealt with, the parties’ relationship is transformed using therapeutictechniques.88 Thus, in both models, the affected parties are reconciled withthe community, although therapeutic intervention, unlike communaltherapy, neither uses mythical intercession nor involves kin in dealing withdeviance.

Consider the trial simulation where two members of the same clan weretried for nywomo wat. Following their plea of guilty, the adha nono said:“[t]his act is a big curse called lusiwa. It can only be treated and finished inaccordance with the rites on lusiwa.”89

The adha nono’s avowal underscores the koti’s responsibility in removinglusiwa thereby protecting offenders and their kinfolk. In this regard, the func-tion of the ja chowiroki found only in the p’oriwa (pictured in figure 2) is of

85 Owor “Making international sentencing”, above at note 15 at 199–200 and 222–26.86 Morwa Guma p’oriwa court (15 August 2006).87 A Horwitz The Logic of Social Control (1990, Plenum Press) at 80–81 and 86–88. Traditional

societies also apply conciliatory and compensatory styles of social control: id at 22, 47–49and 65–74.

88 S Roberts “Three models of family mediation” in R Dingwall and J Eekelaar Divorce,Mediation and the Legal Process (1988, Clarendon Press) 144 at 145.

89 Excerpt from the speech of the adha nono at the trial simulation.


special interest. His role is to guide the koti on the prescribed punishment andthe procedure for ritual cleansing, and to ensure that rituals are carried out inaccordance with clan law. The ja chowiroki proclaimed:

“There are four requirements: a cow called ‘Luk’, rombo [a sheep], a dog and a

kayindi [small hut]. The first two are payable by the father of the boy. The okewowill build a hut and the couple will strip naked, leave their clothes in the hut,

and remain in the hut with a dog. The hut is set alight and they all run out

naked where okewo will be waiting to whip them. As they run out the lusiwais removed and they are cleansed.”90

The ja chowroki’s declaration shows that, after compensation is paid by themale offender’s father to the father of the female offender, the ritual cleansingis conducted by the okewo. As the naked couple escape from the burning grasshut, the okewo whips them. The lusiwa is removed and the offenders arereunited with the clan.

It is conspicuous that women are debarred from performing these cer-emonies which are conducted by a male okewo. This may be likened towomen among the Azande who are prohibited from taking part in oracularjustice. Clearly, women’s participation in rituals remains peripheral.

This data leads to the conclusion that koti are not independent in the frame-work of international human rights standards, where courts of law have noplace for a spiritual adviser, far less supernatural beliefs. Although nowadaysall clan officials are responsible for spiritual affairs, the exclusion of womenfrom the performance of rituals affirms their subordinate position withinthis social framework. The control of divine matters therefore represents thepreservation of traditional roles, reminiscent of pre-colonial times.

CONCLUSION

The evidence presented in this article raises a number of distinct features ofthe independence of clan courts. The similarities and divergence in eachclan’s notion of an independent court adds to the inconsistencies andstrengths identified here and elsewhere. Jopadhola koti do not qualify as inde-pendent courts by international human rights standards because they do notadhere to the legal doctrine of separation of powers. The Jo-Gem clan, forinstance, merges the lower level state executive with the koti officials, similarto the “combined” African district courts of the colonial era. The Morwa Gumacourts exhibit a conflation of executive and judicial functions. Furthermore,legal qualifications are largely irrelevant in both clans. In this respect, theSALC comments aptly sum up their status in law. SALC contends that, if tra-ditional courts are regarded as courts of law, they could be viewed as courts

90 Excerpt from the speech of the ja chowiroki at the trial simulation.


sui generis [in their own right] which need not be subject to the doctrine of sep-aration of powers and which do not give audience to legal practitioners.91

Equally, the clans’ strength is in reconciling normative differences in legaldoctrine with a communitarian notion of human rights that permits everyclan member to participate in the creation of clan courts. One may arguethat features like age and gender parity, election of office bearers based on ful-filling social obligations to kin (meritocracy), protection of the clan from evilthrough ritual, and the fact that court and litigants are personally acquaintedas kin, all make clan courts independent within the traditional framework.Jopadhola clans have thus created an “expanded” notion of “judicial” indepen-dence: one that is culturally appropriate in the local African context.

In view of these findings, there is need for a rethink concerning the enforce-ment of the Guidelines by traditional courts. At the national level, this wouldinvolve an amendment of articles 28(1) and (12) of the Constitution, and laws92

to bring traditional courts within the ambit of the Guidelines. That way, clancourts could receive guidance on how to protect the right to a fair trial as pre-scribed in section Q(a) of the Guidelines. Even so, some caveats are in order.

On the one hand, safeguarding the independence of traditional courtsthrough legislation risks creating “statutory” traditional courts that becomean extension of the state’s executive. For instance, statutory traditional courtsin Malawi are aptly described by Wanda as an “extended arm of the executive”because they are subjected to “excessive” control by the Ministry of Justice.93

Cultural norms would be diluted in the process. On the other hand, leavingcompliance with the Guidelines to the vagaries of clans may undermine anindividual’s right to a fair trial, more so since judicial functions are sharedby clan heads and judges alike.

This article has shown how clans accommodate elements of an independentcourt by borrowing from the state using a traditional construct of humanrights. The differences and similarities identified here enable us to appreciatethat, within the milieu of the African regional human rights instruments,what pertains now may be defined as a “hybrid” clan court system, influencedby outside factors, yet retaining dominant customary control.

91 SALC “The harmonisation”, above at note 48 at 15, para 4.3.92 MCA, sec 10.93 Wanda “The role of traditional courts”, above at note 11 at 81 and 90–91.
